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MARIO'S BUTCHER SHOP & FOOD CENTER v. ARMOUR & CO.

November 29, 1983

MARIO'S BUTCHER SHOP AND FOOD CENTER, INC., AN ILLINOIS CORPORATION; AND MARIO LETTIERI, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
ARMOUR AND COMPANY, AN ARIZONA CORPORATION, WORTHINGTON PACKING COMPANY, AN OHIO CORPORATION, AND SWIFT INDEPENDENT PACKING COMPANY, A DELAWARE CORPORATION, INDIVIDUALLY AND AGAINST ALL PERSONS SIMILARLY SITUATED, DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

The plaintiffs brought the instant case in the Circuit Court of Cook County against Armour, Worthington, and Swift alleging that the defendants packaged and sold hog intestines as pork chitterlings, which plaintiffs purchased, in containers which were labeled as containing ten pounds of meat but which, in fact, contained a lesser quantity of meat. The two-count complaint charges that in so doing, defendants have violated the Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 261 et seq. (1981), and the Uniform Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 311, et seq. (1981). The cause was removed to this Court by defendants. 28 U.S.C. § 1441. Presently before the Court is the defendants' Motion to Dismiss for failure to state a claim. For the reasons stated herein, the Motion to Dismiss is denied.

Jurisdiction over the instant matter is properly based on diversity of citizenship between the parties. 28 U.S.C. § 1332. The amount in controversy exceeds the jurisdictional minimum.

In their Motion to Dismiss, defendants contend that the state statutes under which plaintiff has sued cannot be applied to the case at bar since federal law has preempted the field of the regulation of meat in the Federal Meat Inspection Act as amended by the Wholesome Meat Act (hereinafter referred to as "the Act"). 21 U.S.C. § 601 et seq. Further, defendant contends that even if plaintiffs sought to pursue the instant matter under federal law, it would be powerless to do so as no private right of action exists under the Act.

It is the considered opinion of this Court that defendant is correct in its assertion that no private right of action exists under the Act. However, for the reasons set out herein, plaintiff may bring suit under the Consumer Fraud and Deceptive Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 261 et seq. (1981) and the Uniform Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121 1/2, ¶ 311 et seq. (1981). In so doing, however, the standards which shall be applied are those set out by federal law.

I. The Private Right of Action

It is plainly the law of this Circuit that no private right of action exists under the Act. In Pacific Trading Company v. Wilson & Co., Inc., 547 F.2d 367 (7th Cir. 1976), the Seventh Circuit upheld the district court in concluding that no private right of action exists under federal law in this area. The Court based its conclusion on the rationale set out by District Judge Lynch whose opinion was appended to the Seventh Circuit's decision. According to Judge Lynch,

  The Federal Meat Inspection Act has as its stated
  purpose, the enforcement of standards throughout
  meat packing plants. Cudahy Packing Co. v. McBride,
  92 F.2d 737 (8th Cir. 1937). Toward this end
  Congress has vested the Secretary of Agriculture
  with powers of inspection. Brougham v. Blanton Mfg.
  Co., 249 U.S. 495, 39 S.Ct. 363, 63 L.Ed. 725
  (1919).
  In the instant case plaintiffs, as private
  individuals, have brought suit for money damages.
  This Act makes no such provision for suits by
  private individuals. In addition, 21 U.S.C. § 676
  provides for imprisonment and fine but not
  for the award of civil damages . . .
  The statutes under which the plaintiffs have
  brought this suit are regulatory in character and
  Congress has vested the power to enforce this
  regulatory scheme

  in the government, not private individuals.

547 F.2d 367, 370 app. (7th Cir. 1976).

From the foregoing there can be no dispute that plaintiffs could not have brought the instant suit under the Act. They are not, however, without remedy as the instant suit could be, and indeed was, properly brought under state law.

II. Federal Preemption of the Field

While the state laws sued under create general causes of action for fraud and deception, the federal and state statutes here under consideration are quite explicit in explaining the effect of conflicting or ...


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